Opinion Analysis: A natural and probable consequence, and maybe something less, sustains a conviction of reckless endangerment in United States v. Herrmann, No. 16-0599/AR
CAAF decided the Army case of United States v. Herrmann, 76 M.J. 304, No. 16-0599/AR (CAAFlog case page) (link to slip op.) on Monday, June 19, 2017. Defining the term likely in the element of conduct likely to produce death or grievous bodily harm, CAAF affirms a conviction of reckless endangerment in violation of Article 134 for the pencil packing of reserve parachutes.
Judge Ohlson writes for a unanimous court.
Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.
CAAF then granted review of a single issue:
Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.
The convictions were based on the pencil packing of reserve parachutes, Judge Ohlson defines pencil packing as:
illicit conduct where a soldier responsible for packing or inspecting a parachute fails to do so, but then falsely indicates in writing that the proper packing and inspecting procedures were followed.
Slip op. at 2-3 n.2. The prosecution introduced testimony by Herrmann’s subordinates admitting to the pencil packing, and also presented evidence of various ways the parachutes could have failed. A conviction of reckless endangerment, however, requires “conduct . . . likely to produce death or grievous bodily harm to another person.” ¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s defense was that any possibility of such harm was less than likely, primarily because the parachutes were merely reserves.
But CAAF is unconvinced and affirms the conviction.
Judge Ohlson begins by distinguishing this case from United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), our #7 Military Justice Story of 2015. Herrmann’s appellate defense counsel relied on Gutierrez rather heavily, but Judge Ohlson explains that it doesn’t answer the issue presented in this case:
Gutierrez differs substantially from the instant case. Gutierrez was a highly fact-specific case involving the probability of transmitting HIV, as demonstrated by scientifically derived statistics. The instant case involves the likelihood of “pencil-packed” parachutes causing parachutists to experience death or serious bodily harm, where the probability of that harm cannot be determined either scientifically or with any degree of precision.
. . .
[O]ur decision in Gutierrez stands for the proposition of what does not constitute “likely”; it provides no definitive answer that we can adopt in the instant case about what does constitute “likely.”
Slip op. at 6.
Instead, the answer lies in a plain-language definition of likely:
We conclude that a “plain language” analysis of the relevant text is dispositive of the issue before us. See United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013); see also EV v. United States, 75 M.J. 331, 333 (C.A.A.F. 2016) (“‘[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’” (alteration in original) (citations omitted)). We note that the word “likely” is not a term of art or an arcane article of the law. Rather, it is used in everyday life with great frequency and its meaning is not difficult to grasp. Accordingly, we hold the following: a determination of whether death or grievous bodily harm is a “likely” result of an accused’s conduct under the provisions of Article 134, UCMJ, is based on the trier of facts’ commonsense, everyday understanding of that term as applied to the totality of the circumstances. This approach is consistent with the President’s explanatory text regarding the offense of reckless endangerment, which states that “[w]hen the natural or probable consequence of particular conduct would be death or grievous bodily harm, it may be inferred that the conduct is ‘likely’ to produce that result.” MCM pt. IV, para. 100a.c.(5).3
Slip op. at 7 (emphasis added).
The first part of this holding (involving a commonsense, everyday understanding) is rather unsatisfying because it doesn’t provide a particularly hearty standard. Military law recognizes many standards of proof: beyond a reasonable doubt, clear and convincing, preponderance of the evidence, and even a possibility and a mere possibility. See United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2012) (CAAFlog case page). Likely is in there somewhere, but it’s not clear where.
This is actually the first thing that came to mind when I first read this definition of likely:
This clip, of course, refers to a 1-in-a-million chance (longer version here), while in Gutierrez CAAF found a better 1-in-500 chance is still insufficient to constitute likely under the UCMJ. Nevertheless, resorting to the “trier of facts’ commonsense, everyday understanding of [likely] as applied to the totality of the circumstances,” is far from a pinpoint definition.
But Judge Ohlson also references the MCM explanation that likely involves “the natural or probable consequence of particular conduct,” and that provides a more definite standard. It is also the standard that Judge Ohlson actually uses in the sufficiency analysis of the evidence in this case:
Examining the evidence in the light most favorable to the Government, a rational finder of fact could have found the following points beyond a reasonable doubt:
(a) the “pencil-packed” reserve parachutes were placed in the “ready-for-issue” cage, and thus were subject to distribution to paratroopers during the next 365-day cycle;
(b) these parachutes were no longer airworthy because of significant safety deficiencies such as missing ejector springs, knotted and stretched out closing loops, and degraded cotton ties; and
(c) the natural and probable consequence of these safety deficiencies was an unintentional deployment of the “pencil-packed” parachute prior to a jump, or a malfunction of such a parachute in the course of a jump, leading to the death or grievous bodily harm of the parachutist or other soldiers.
Slip op. at 8 (paragraphs and emphasis added).
The standard Benchbook instruction on this issue informs members that
The conduct must have been “likely” to bring about death or grievous bodily harm. It is not necessary that death or grievous bodily harm actually result.
When the natural and probable consequence of particular conduct would be death or grievous bodily harm, it may be inferred that the conduct is “likely to produce” that result. The drawing of this inference is not required.
§ 3–100a–1.d, Military Judges’ Benchbook, Dep’t of the Army, Pam. 27-9 (2014 w/ interim update 15-06). It’s clear from CAAF’s resolution of this case that a natural and probable consequence of the harm is legally sufficient to sustain a conviction, and adopting that standard is certainly the safest choice in any case. But while Judge Ohlson explains that in Gutierrez the court rejected “the notion that the term likely equates to anything more than merely a fanciful, speculative, or remote possibility,” slip op. at 6 (marks and citation omitted), it’s still not entirely clear how much less than a natural and probable consequence will sustain a conviction of reckless endangerment.
• ACCA opinion (75 M.J. 672)
• Appellant’s brief
• Appellee’s (Army App. Gov’t Div.) brief
• Appellant’s reply brief
• Amicus brief: Law student
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis